United States District Court, District of Columbia
E. BOASBERG, UNITED STATES DISTRICT JUDGE
Lawrence Albert is a white, Jewish man over sixty years old.
After an almost-40-year career at the United States
Department of Agriculture, Albert brought this suit, alleging
a host of discriminatory and retaliatory actions by his
supervisors. Chiefly, he claims that his non-selection for a
grade 14 position violated Title VII and the Age
Discrimination in Employment Act. Albert further alleges that
he was subjected to a hostile workplace at USDA and that
reduced responsibilities, lower-than-Outstanding performance
evaluations, and a six-month assignment in a different
division violated his rights. Defendant Sonny Perdue,
Secretary of Agriculture, now moves for summary judgment on
all counts, contending that no reasonable jury could find
that Albert suffered discrimination or retaliation or was
subjected to a hostile environment. Concluding that only
Plaintiff’s non-selection and reduced-responsibilities
claims survive, the Court will grant in part and deny in part
must at this stage, the Court sets out the facts here in the
light most favorable to Plaintiff. See Talavera v.
Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). Although more
details of particular claims appear in the Analysis,
infra, the Court will lay out the general background
here. Albert joined USDA in 1980, where he began his career
as a Food Program Specialist. See Def. Mot.,
Statement of Material Facts (SMF), ¶ 4. After holding
that position for 14 years, he completed a detail as an Equal
Employment Specialist in the Department’s Civil Rights
office. Id., ¶¶ 4–5. That detail
became permanent, and Albert continued serving in that
capacity until 2000. Id., ¶ 6. Later that year,
USDA assigned him to a detail in its Conflict Prevention and
Resolution Center (CPRC), a predecessor office to the Early
Resolution and Conciliation Division (ERCD) within the Office
of the Assistant Secretary for Civil Rights (OASCR).
Id., ¶¶ 6–7. While on detail there,
Albert accepted a permanent position. Id., ¶ 7.
In addition to these roles, Plaintiff has served as an Early
Resolution and Conciliation Specialist, GS–13, through
the time he filed his Complaint. Id., ¶ 3. In
that role, Albert assisted employees who filed or were
considering filing Equal Employment Opportunity complaints
and are seeking Alternative Dispute Resolution. See
Def. Mot., Exh. 1 (First Deposition of Lawrence Albert) at
15; Compl., ¶ 18.
Albert’s view, the last eight years of his nearly
four-decade-long tenure with USDA have been plagued by
substantial work-related mistreatment. See Compl.,
¶¶ 87–134. He points to his reduced workload,
non-stellar performance evaluations, and a six-month
assignment in a different division. Id. He also
takes issue with Defendant’s decision not to select him
for a vacancy in the position of Dispute Resolution
Specialist, GS–14. Id. So Plaintiff filed two
discrimination complaints with the Equal Employment
Opportunity Commission - one in 2012, the other in 2014 -
alleging that Defendant discriminated against him on the
basis of his race, religion, sex, prior EEO activity, and
age. See Def. Mot., Exh. A (First Report of
Investigation (ROI)) at 23; Exh. B (Second ROI) at 2, 89.
Albert initially sought a hearing from an administrative
judge but rescinded this request to allow the agency to reach
a final decision on his claim. See Compl.,
¶¶ 5–6. But the agency did not do so within
the allotted 40-day timeline, as set out under applicable
law. See 29 C.F.R. § 1614.110(b); Compl.,
result, on August 3, 2017, Plaintiff filed suit in this
Court, asserting eight causes of action. See Compl.,
¶¶ 87–134. He alleges that Defendant violated
Title VII and the ADEA by generally discriminating against
him, harassing him, and creating a hostile work environment
because of his race (Count I), color (Count II), sex (Count
III), religion (Count IV), prior EEO activity (Count V), and
age (Count VI). Plaintiff also separately maintains that his
non-selection was the result of the same forms of
discrimination in violation of Title VII (Count VII) and the
ADEA (Count VIII). Defendant has now moved for summary
judgment on all counts.
judgment may be granted if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is
“material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty
Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party. See Scott v. Harris, 550 U.S. 372,
380 (2007); Liberty Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895. “A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion” by “citing to particular parts of
materials in the record” or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
motion for summary judgment is under consideration,
“[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his
favor.” Liberty Lobby, 477 U.S. at 255;
see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C.
Cir. 2006); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,
1288 (D.C. Cir. 1998) (en banc). On a motion for
summary judgment, the Court must “eschew making
credibility determinations or weighing the evidence.”
Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.
nonmoving party’s opposition, however, must consist of
more than mere unsupported allegations or denials and must be
supported by affidavits, declarations, or other competent
evidence, setting forth specific facts showing that there is
a genuine issue for trial. See Fed.R.Civ.P. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
The nonmovant is required to provide evidence that would
permit a reasonable jury to find in its favor. See
Laningham v. Navy, 813 F.2d 1236, 1241–42 (D.C.
Cir. 1987). In light of this requirement, and pursuant to
Local Civil Rule 7(h) and Federal Rule 56(c), the Court, in
resolving summary-judgment motions, “assume[s] that
facts identified by the moving party in the statement of
material facts are admitted, unless such a fact is
controverted in the statement of genuine issues filed in
opposition to the motion.” Local Civ. R. 7(h)(1).
considering Defendant’s Motion for Summary Judgment,
the Court first addresses the heart of the suit - namely,
Albert’s non-selection counts. It next considers his
hostile-work-environment claims and concludes with the
remaining discrete claims of discrimination and retaliation.
2014, USDA advertised two vacant Dispute Resolution
Specialist, GS–14, positions. See Second ROI
at 89. Cyrus Salazar - Director of ERCD and Albert’s
immediate supervisor - convened a panel to interview and
assess the pool of candidates seeking these positions.
See Def. Mot., Exh. 5 (Deposition of Cyrus Salazar)
at 12, 77–79. In assembling his panel, Salazar followed
the guidance of the National Finance Center, which provides
services to federal agencies. Id. at 73,
77–79; SMF, ¶ 30. To wit, Salazar selected a
diverse panel comprised of David King (black, over the age of
40), Alicia Rodriguez (white, Hispanic, Catholic, over the
age of 40), and William Scaggs (white, Methodist).
See Def. Mot, Salazar Depo. at 77–79; SMF,
¶ 30. The panel, in turn, interviewed seven candidates,
including Plaintiff. See Def. Mot., Salazar Depo. at
12; Reply, Exh. D (Panelists’ Interview Information) at
246, 255, 264. Salazar then reviewed the panelists’
scores and selected Anita Pitchford and Edward Profit - the
two highest-scoring candidates - for the vacant positions.
See Def. Mot., Salazar Depo. at 157; see
also Opp. at 13. Both Pitchford and Profit are black,
non-Jewish, and younger than Albert. See Opp., Exh.
26 (Anita Pitchford Affidavit) at 274; Opp., Exh. 25 (Edward
Profit Affidavit) at 193; Opp. at 13.
seeking summary judgment here, Defendant states that Albert
did not gain the position because of his poor performance on
the interview. See Def. Mot. at 15–16; Reply
at 3. Plaintiff, on the other hand, attributes his
non-selection to discrimination on the basis of his race,
color, sex, religion, and age, as well as retaliation for
having filed EEO complaints. See Compl.,
VII makes it unlawful for employers “to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment because of
such individual’s race, color, religion, [or]
sex.” 42 U.S.C. § 2000e–2(a)(1). It also
forbids retaliation against employees who engage in protected
EEO activity. Id. § 2000e–3(a). The ADEA
likewise prohibits discrimination against an employee on the
basis of age. See 29 U.S.C. § 623(a)(1).
Individuals 40 years of age and older are included in the
protected class. Id. § 631(a).
weighing a discrimination or a retaliation claim under Title
VII or the ADEA, the Court must follow the three-part
burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–05 (1973).
See Ford v. Mabus, 629 F.3d 198, 201 (D.C. Cir.
2010) (applying framework to ADEA claims); Taylor v.
Small, 350 F.3d 1286, 1292 (D.C. Cir. 2003) (applying
framework to Title VII claims). Under this framework, the
plaintiff carries the initial burden of establishing a
prima facie case of discrimination or retaliation.
See 411 U.S. at 802 (applying framework to
discrimination claim); see also Jones v. Bernanke,
557 F.3d 670, 677 (D.C. Cir. 2009) (applying framework to
retaliation claim). To pass that hurdle, she need only show
that “(1) she is a member of a protected class; (2) she
suffered an adverse employment action; and (3) the
unfavorable action give rise to an inference of
discrimination.” Czekalski, 475 F.3d at 364
(internal quotation marks and citation omitted); see also
Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir.
2012) (requiring plaintiff to declare that he engaged in
protected activity under Title VII to establish prima
facie retaliation claim).
the defendant may rebut that prima facie showing
with evidence of a “‘legitimate,
nondiscriminatory reason’ for its action.”
Chappell-Johnson v. Powell, 440 F.3d 484, 487 (D.C.
Cir. 2006) (quoting McDonnell Douglas, 411 U.S. at
802). Finally, if the defendant has produced such evidence,
then the plaintiff must show that “the legitimate
reasons offered by the defendant were not its true reasons,
but were a pretext for discrimination.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000) (quoting Tex. Dep’t of Cmty Affairs v.
Burdine, 450 U.S. 248, 253 (1981)).
however, “an employee has suffered an adverse
employment action and an employer has asserted a legitimate,
non-discriminatory reason for the decision, ” the Court
“need not-and should not-decide whether the plaintiff
actually made out a prima facie case” because
it should focus only on the third part of the McDonnell
Douglas analysis. See Brady v. Office of Sergeant at
Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). But, as our
Circuit recently held, this “Brady
shortcut” does not “relieve the employer of its
burden . . . ‘to articulate a legitimate,
nondiscriminatory reason for its action.’”
Figueroa v. Pompeo, 923 F.3d 1078, 1087 (D.C. Cir.
2019) (quoting Wheeler v. Georgetown Univ. Hosp.,
812 F.3d 1109, 1114 (D.C. Cir. 2016)).
that windup, the Court will now turn to Albert’s Title
VII and ADEA claims concerning his non-selection for the
position of ADR Specialist, GS–14. See Compl.,
¶¶ 87– 134. Because such non-selection is
clearly an adverse employment action, see Kalinoski v.
Gutierrez, 435 F.Supp.2d 55, 69 (D.D.C. 2006), the Court
need not perform any further threshold analysis of whether he
has established a prima facie case of
discrimination. See Brady, 520 F.3d at 494. It will
instead examine the sufficiency of Defendant’s
nondiscriminatory explanation for Albert’s
non-selection and next decide whether a jury could find this
Legitimate, Nondiscriminatory Explanation
justify its non-selection, Defendant maintains that Albert
was not qualified for the GS-14 position based on his
interview performance. In assessing whether this is a
legitimate, nondiscriminatory reason, the Court considers
four factors: (1) whether the employer produced evidence that
would be admissible at the summary-judgment stage; (2)
whether the factfinder, if it believes the evidence, could
reasonably “find that the employer’s action was
motivated by a nondiscriminatory reason”; (3) whether
the employer’s explanation is “facially credible
in light of the proffered evidence”; and (4) whether
the employer’s evidence presents a “clear and
reasonably specific explanation” such that the employee
has “a full and fair opportunity to attack the
explanation as pretextual.” Figueroa, 923 F.3d
at 1087–88 (internal quotation marks and citations
omitted). The Court will address each factor in turn.
Defendant has produced evidence that may be considered at
summary judgment, including the notes of each panelist and
his or her scores and ratings for each of the seven
applicants. See, e.g., Panelists’ Interview
Info. at 245–71. The Government has also presented
deposition testimony from Salazar - the selection official
who designed the interview process - and ...